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'Implied' False Certification Requires 'Material' Misrepresentation

Tuesday, September 26, 2017 06:15 am


False Claims Act

U.S. ex. rel. Dana Curtin v. Barton Malow Co., 2017 U.S. Dist. Lexis 86864 (W.D. La. June 6, 207)

A whistleblower could not use the False Claims Act to hold accountable a contractor who knowingly used noncompliant material on a construction project. That violation was nothing more than a "garden-variety breach of contract."

Dana Curtin charged Barton Malow Company (BMC) with installing non-warrantied roofing material on a federal construction project---which allegedly led the contractor to present a false claim for payment to the government. BMC responded by filing a motion to dismiss.

Curtin was the quality control manager for BMC on a project to construct a building at Barksdale Air Force Base in Bossier City, Louisiana. Part of BMC's work involved installation of "Blue Skin", a product manufactured by Henry Company, to serve as a barrier between the building's substructure and the roof. Henry Company's warranty is invalidated if the product is exposed to 90 days or more of UV light exposure. Curtin claimed that the Blue Skin used on the instant project had been exposed for more than 90 days---and that BMC knew this.

Curtin alleged that: (1) BMC's contract with the federal government required the Blue Skin used in the project to be covered by a warranty, (2) that BMC knowingly installed Blue Skin that was not, and (3) that BMC billed the government for installation work it knew didn't comply with the contr [...]

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